1. The petitioners are the accused persons in I.C.C. Case No. 2710 of 2008 pending before the learned S.D.J.M., Bhubaneswar. The complaint petition was filed by the opp. party no. 1 herein, against the petitioners and other accused persons making allegation of commission of offence under sections 499/500/501/502/34 IPC . The petitioner no. 1 is the Editor of the daily Oriya newspaper, "The Dharitri" and the petitioner no. 2 is its Printer and Publisher. On the complaint petition being filed, the learned S.D.J.M. recorded the initial statement of the complainant and by order dated 26.6.2008, considering the initial deposition of the complainant and the documents available on record found that prima facie evidence of commission of offence under sections 500/501/502/34 IPC is revealed. Hence, he took cognizance of the said offences and directed issuance of process against the accused persons including the two petitioners fixing 21.7.2008 for appearance. The petitioners accused persons as well as the accused "The Samajbadi Society" appeared through its council in response to summons issued and upon a memo being filed by the complainant, the name of accused no. 4 was deleted from the record. Petitions were filed by the petitioners under section 205 Cr.P.C. praying to dispense with their personal appearance which were heard and disposed of by the learned court below on 2.8.2008 allowing the said prayer. The petitioner no. 1 was also permitted by the learned S.D.J.M. to represent accused no. 3 - M/s. The Samajbadi Society, in the case. On 30.10.2008, the complainant produced one witness, namely, Jatindra Narayan Chhotray, when the accused persons prayed for time, which was allowed till 1.11.2008. On 1.11.2008, the said witness was examined in chief. The accused persons prayed for an adjournment which was rejected and it was recorded that the cross-examination of P.W. 1 is declined. On 6.12.2008, another two witnesses, namely, Debesh Das and Pratap Kumar Das were produced by the complainant, but as the court was busy in chamber duty, the case was adjourned to 15.12.2008. On 15.12.2008, new advocates appeared for the accused and even though one witness was present, the case was adjourned to 15.1.2009. Again 15.1.2009, the witness Debesh Das was examined as P.W. 2 in part and due to his sudden illness, his examination was deferred. The case was adjourned to 7.2.2009. On 24.1.2009, a petition under section 311 Cr.P.C. was filed on behalf of the accused persons for recalling P.W. 1 for cross-examination and another petition was filed for recalling the order of cognizance. The learned court below after hearing both the petitions allowed the petition for recalling P.W. 1 for cross-examination and rejected the petition for recalling the order taking cognizance of offences on the ground that the said petition is not maintainable. On 7.2.2009 the accused persons cross-examined P.W.1 who was thereafter discharged. This Criminal Misc. Case has been filed under section 482 Cr.P.C. on 30.1.2009 with a prayer to quash the order taking cognizance of the offences, dated 26.6.2008.
2. It was contended by Mr. Mishra, learned counsel for the petitioner that there is absolutely no case made out under sections 500/501/502 of the I.P.C. inasmuch as it was open for the complainant to take recourse to section 14 of the Press Council Act, 1978 which envisages that if a complaint is raised by the Press Council of India and the Council has reasons to believe that a newspaper or news agency has offended against the standards of Journalistic ethics or public test or that an Editor or a working Journalist has committed any professional misconduct, the Council may after giving the newspaper, or news agency, the Editor or Journalist concerned an opportunity of being heard, hold an enquiry in such manner as may be provided by regulations made under the said Act and if it is satisfied that it is necessary so to do, it may for reasons to be recorded in writing, warn, admonish or censure, the newspaper, the news agency, the Editor, or the Journalist or disapprove, the conduct of the Editor or the Journalist as the case may be. It is, thus, submitted by the learned counsel that it would have been just and proper for the complainant, if at all he had any allegation, as stated in the complaint petition to have approached the Press Council of India under the Press Council Act, 1978 and the learned court below had absolutely no power to entertain the complaint petition and take cognizance of the offences which are not sustainable in law. It is further contended by Mr. Mishra that while taking cognizance the learned court below should have considered that the complainant has not specifically stated that the petitioners were in-charge of selecting the news items which are to be published in the newspaper and, more specifically, no where in the complaint petition, the complainant has stated that at the relevant time, the petitioners were occupying the position of news Editors and are in any way responsible for publication of the news in question which is alleged to have affected the reputation of the complainant. Hence, the learned court below should have desisted from taking cognizance of the offences as has been done and, thus, the order of taking cognizance being illegal, is liable to be quashed. Mr. Mishra further contended that the complainant has not whispered any word in the complaint petition that the petitioners were in inimical terms with him in any manner and the news items were nothing but vindictive action on the part of the petitioners and, thus, in the absence of such material, the learned court below should not have taken cognizance of the offences. As a matter of defence, it had been contended that the petitioners are responsible persons holding a widely circulated Oriya daily and their duty is to bring the facts to the readers of the State and other parts of the country. Thus, while exercising their responsible jobs, the news items, which related to a sensational murder of a Judo Coach of the State, namely, Biranchi Das, were published in good faith and not with a deliberate intention to malice the reputation of any body. The petitioner no. 1 is stated to be a popular politician of the State and at present, the Member of Parliament from Dhenkanal Parliamentary Constituency. It is, therefore, stated that he seldom has time to select the news item to be published in his newspaper and, as a matter of fact, being the Editor, his duty is to control the administrative affairs of the newspaper concerned but not to select the news items which is the duty of the news Editors. The news item, according to the learned counsel for the petitioner, relates to facts existing and, therefore, cannot be termed to be malicious or published with the intention to defame the complainant. Mr. Mishra, in support of his contentions relied upon the decisions in the cases of Mammen Mathew v. M.N. Radhakrishnan and another, 2008 CRI.L.J.845, V.S. Achuthanandan v. G.Kamalamma and another, 2008 CRI.L.J. 4221, K.M. Mathew v. State of Kerala and another, (1992) 5 OCR 66, Vijay Jawaharlalji Darda and others v. Laxmikanth C. Gupta and another, 2005 CRI, L.J. 1886, Kalyanam v. Ramesh, 2003 (2) Crimes 157, H.K.Dua v. Chander Mohan, Deputy Chief Minister of Haryana, 2008 CRI. L.J.2301, Vivek Goenka v. State of Maharashtra and another, 2003 CRI. L.J. 4058 and Prabhu Chawla and others v. A.U. Sheriff, 1995 CRI.L.J. 1922.
3. In the case of Mammen Mathew (supra), the Kerala High Court referring to the news items which were alleged to be defamatory by the complainant and relying upon the decision in the case of Sunilakhya Chowdhury v. H.M. Jadwet and another, AIR 1968 Calcutta 266 came to the conclusion that mere publication of an imputation by itself may not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that such imputation will harm the reputation of the person concerned and considering the publication involved in the said case, the said High Court held that by no stretch of imagination could it be said that Annexure-B news item was published with the intention of harming the reputation of the complainant. If it were so, then as soon as the complainant voiced his protest, the first accused would not have published Annexure-C news item faithfully conveying to the public what the complainant had represented to the Malayala Manorama daily. The High Court also raised its doubt as to whether a complaint of defamation would lie against the first accused Editor. In the said case, at the top of the relevant page of the daily newspaper, the names of associate Editor, Managing Editor, Editor, Chief Editor etc. were mentioned and after the names of the last two functionaries, it was printed "responsible for selection of news item under the P.R.B. Act". Considering the facts involved in the said case, the Kerala High Court held that the complaint does not make out the alleged offence and it cannot be allowed to stand and, accordingly, quashed the same.
4. In the case of V.S. Achuthanandan (supra), the Kerala High Court was in seisin of an application filed by different accused persons in a criminal case for quashing the proceeding. The facts of the said case related to a news item publishing the visit of the Member, Human Rights Commission (Kerala State) to a Government hospital. Referring to the news item and quoting allegations made in the complaint petition, the Court came to the conclusion that there is absolutely no positive allegation that the first accused is responsible for the selection of the news article and printing and publishing the same and for the above sole reason, it can be seen that the averments contained in Annexure- B complaint are not sufficient to constitute an essence of ingredients of section 499 IPC. The case of Mammen Mathew (supra) was also relied upon. The Court ultimately came to the conclusion that on a reading of the complaint, no offence under section 499 is disclosed against the petitioners therein who are the accused persons. In the case of K.M. Mathew (supra), the Supreme Court has held as follows:-
"In the instant case, there is no averment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and vague. The complainant seems to rely upon the presumption under section 7 of the Press and Registration of Books Act, 1867 ('the Act'). But section 7 of the Act has no applicability for a person who is simply named as "Chief Editor". The presumption under section 7 is only against the person whose name is printed as 'Editor' as required under section 5(1). There is a mandatory (though rebuttable) presumption that the person whose name is printed as 'Editor' is the Editor of every portion of that issue of the newspaper of which a copy is produced. Section 1 (1) of the Act defines 'Editor' to mean the person who controls the selection of the matter that is published in a newspaper. Section 7 raises the presumption in respect of a person who is named as the Editor and printed as such on every copy of the newspaper. The Act does not recognize the any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under section 7 of the Act. (See State of Maharashtra v. Dr. R.B. Chowdhary and others: 1967 (3) SCR 257: D.P.Misra v. Kamal Narain Sharma and others, 1971 (3) SCR 257: Narasingh Charan Mohanty v. Surendra Mohanty, 1974
(2) SCR 39: and Haji C.H. Mohammad Koya v. T.K.S.M.A. Muthukoya, 1979 (3) SCR 664)."
In the case of Vijay Jawaharlalji Darda and others (supra), the Bombay High Court was considering a case where cognizance was taken against a Chief Editor of a paper and relying upon various apex Court judgments concluded that it is important for a Magistrate to take cognizance of the offence as against the Chief Editor only when there is positive averments in the complaint regarding knowledge of the objectionable character of the matter and the complaint in the said case did not contain any such allegation. The High Court also held that section 7 of Press and Registration of Books Act, 1867 (for short, 'the Act 1867') has no applicability for a person who is simply named as a Chief Editor and the presumption under section 7 of the Act, 1867 is available against the persons whose name is printed as "Editor" as required under section 5 (1) of the Act, 1867. There is a mandatory (though rebuttable) presumption that the person whose name is printed as 'Editor' is the Editor of every portion of that issue of the newspaper of which a copy is produced. Section 1 (1) of the Act, 1867 defines 'Editor' to mean the person who controls the selection of the matter, that is published in a newspaper and such presumption under section 7 raises the presumption in respect of a person, who is named as the Editor and printed as such on every copy of the newspaper. The Act, 1867 does not recognize any other legal entity for raising the presumption. From the decisions referred to by the learned counsel for the petitioners, it, therefore, appears that in each case, the question as to whether the publication amounts to an offence of defamation is to be examined in reference to the publication made and whether presumption under section 7 of the Act, 1867 can be raised against the Editor, whose name appears in each copy of the publication. In the instant case, a detailed reference has been made in the complaint petition to the repeated publications publicized in the Oriya Daily, "The Dharitri" giving reference to the particular volume, issue numbers and the date of publication. The copies of the newspaper publications were also filed before the Court. The admitted case of the parties is that the name of the petitioner no. 1 appears in each copy of the publication as the 'Editor' and the name of the petitioner no. 2 appears in each copy of the publication as Printer and Publisher. The social standing of the complainant has been highlighted in the complaint petition. Specific allegation has been made as to how after the news items were published, the prestige of the complainant tarnished in the society when various enquiries were made by his friends, relatives and other persons with regard to the said news items.In volume 34 issue No. 145 dated 20.4.2008 (Sunday) of "The Dharitri" in the front page a news item was published with the caption in bold letters, such as, "LUCHIJAICHI SCRAP KARABAR". In the said news item, the
3. In volume 34, issue no. 148 dated 23.4.2008, of the said newspaper, another news item under the caption in bold letters, such as, "SUPARI
4. DEITHILE PRIYABRATA" was published, wherein the public were conveyed that the complainant is involved in the killing of the Judo coach Biranchi Das and that Sandip Acharya @ Raja Acharya was not involved in the crime. It was also conveyed to the public that the media has the evidence and proof of involvement of the complainant in the murder of Shri Biranchi Das. Similarly, in volumn 34, issue no. 150 dated 25.4.2008, a news item under the caption letter "BADABADIANK PRABHAB CHAGALANKA BAYAN BADALAO" was published, where the complainant was portrayed as one of the persons involved in the killing of Judo coach Biranchi Das.
The news item published in volume 34, issue no. 151 dated 26.4.2008 under the caption "HATYAKARINKU DHARIBA NUHEN, LAKHYARE PAHANCHIBA" was also to the same effect. Another news item in a box in the front page of the newspaper was also published under the caption "RAJA MALE SAMASTE SURAKHITA" where it was indicated that the complainant was a party to a meeting along with other police officers wherein it was planned to kill Raja in an encounter. The other publications repeatedly made were also to similar effects involving the complainant.
6. This Court, therefore, finds that the publications made, which have been taken exception by the complainant cannot be equated with the publication, which were dealt with by the Kerala High Court or the Bombay High Court in the aforesaid decisions.
7. The next question involved in this case is as to whether the petitioners, who are admittedly the Editor and the Printer and Publisher of the newspaper, can be held responsible for publishing the above news items or selecting the said news items to be published. .
8. Mr. Sanjeet Mohanty, learned senior counsel appearing for the opp. party no. 1 complainant, submitted that the petition under section 482 Cr.P.C. cannot be maintained at this belated stage, when the cognizance of the offences by the learned S.D.J.M. was taken on 26.6.2008, the accused persons appeared pursuant to the process issued and have taken part in the trial which has already commenced by cross-examining the P.W.1.
9. In reply to the contention of the petitioners that the complainant could have taken recourse to the Press Council Act, 1978, Mr. Mohanty submitted that such recourse was available to the complainant over and above his legal remedy available to file a suit for damages or for defamation or a criminal proceeding under sections 499/500 IPC. For the above contention, he relied upon the decision in the case of Voluntary Health Association of Tripura and others v. Press Council of India and others, AIR 2003 Delhi 76. The Delhi High Court in the said case held that the Press Council of India is a quasi judicial body constituted under the Press Council Act, 1978. The object of the council is to preserve the freedom of the press and to maintain and improve standard of the newspapers and news agencies in India. Section 14 of the Act empowers the Council to administer warning, admonition or censure to the newspapers/ news agencies or to censure or disapprove the conduct of an editor or the concerned journalist, if the Council has reason to believe that the newspaper/news agency has acted in breach of journalistic ethics or the Editor/Journalist have committed any professional misconduct. Section 14(2) of the Act also enables the Council to require any newspaper to publish the correspondence or proceedings of any enquiry conducted by it or a decision taken requiring the publication to publish a reply. The newspaper or the publication has the duty to objectively verify the facts and ascertain the version of the person, who is likely to be affected by the publication or against whom imputations which are defamatory, are being published. In case, there has been a lapse in pre- verification of facts or the publication does not contain the view point of the person aggrieved, the Press Council Act prescribes for issuing a direction to the publication/newspaper to publish the reply/version of the aggrieved person. The above mechanism is available besides the legal remedy available to an aggrieved person of filing a suit for damages for defamation or a criminal complaint under sections 499/500 IPC.
(Emphasis supplied).
10. This Court in the case of Banka Behari Singh v. O.M. Thomas and others, AIR 1960 Orissa, 126, while making a distinction in publication between a "books" and "newspapers" held as follows:-
" So far as news papers are concerned, section 7 of that Act says that a copy of a declaration made under section 6 shall be held (unless the contrary be proved) to be sufficient evidence as against the persons whose names shall be subscribed to such declaration, that the said person was the printer or publisher of every portion of the newspaper. There is no similar provision in the Act with regard to books .".
11. In the case of Ramesh Chander v. The State, AIR 1966 Punjab and Haryana 93, Justice H.R. Khanna (as he then was) while dealing with an appeal of an accused convicted for an offence under section 500 IPC finding that the accused is admittedly the Printer and Publisher of the Hindu Samachar, referring to section 7 of the Act , 1867 held that the said section, inter alia, provides that the production in any legal proceeding of an attested copy of such declaration shall be held (unless the contrary be proved) to be sufficient evidence as against the person whose name shall be subscribed to such declaration that the said person was the printer or publisher of every portion of the newspaper in question.
12. Again the Supreme in the case of K.M. Mathew v. K.A. Abraham and others, AIR 2002 S.C. 2989 interpreting section 7 of the Act, 1867 held as follows:- "The Managing Editor, Resident Editor or Chief Editor of a newspaper are not immune from prosecution for libelous matter published in the newspaper. Under section 7 of the 1867 Act, there is a presumption that the Editor whose name is printed in the news paper as Editor shall be held to be the Editor in any civil or criminal proceedings in respect of that publication and the production of a copy of the newspaper containing his name printed thereon as Editor shall be deemed to be sufficient evidence to prove that fact, and as the 'Editor' has been defined as the person who controls the selection of the matter that is published in a newspaper, the presumption would go to the extent of holding that he was the person who controlled the selection of the matter that was published in the newspaper. But at the same time, this presumption contained in section 7 is a rebuttable presumption and it will be deemed as sufficient evidence unless the contrary is proved. That does not mean that there is statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. Though a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper. State v. Chowdhary, AIR 1967 SC 110: Haji Mohd. Koya v. Muthukoya, AIR 1979 SC 154 and Mathew v. State, 1992 AIR SCW 2666. Disting.
.
In the instant case, the complainant in each case has alleged that Managing Editor, Chief Editor or Resident Editor had knowledge and were responsible for publishing defamatory matter in their respective newspaper publication. Moreover, in none of these cases, the 'Editor' had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter of evidence in each case. If the complaint is allowed to proceed only against the 'Editor' whose name is printed in the newspaper against whom there is a statutory presumption under section 7 of the Act, and in case such 'Editor' succeeds in proving that he was not the 'Editor' having control over the selection of the alleged libelous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit. The quashing of complaint against the appellant is therefore improper".
13. With regard to the exception to section 499 IPC, in the case of Balraj Khanna and others v. Moti Ram, AIR 1971 SC 1389, the Supreme Court has laid down that the question of applicability of the exception to section 499 IPC as well as all other defences that may be available to the appellants, will have to be gone into during the trial of the complaint.
14. On analyzing the facts of the present case in the touchstone of law laid down by the Supreme Court and other High Courts in the aforesaid decisions relied upon by the respective parties, it would be appropriate to refer to section 7 of the Act, 1867 which runs as follows:-
"7. Office copy of declaration to be prima facie evidence. - In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid attested by the seal of some Court empowered by this Act to have the custody of such declaration [ or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, "[ or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every [newspaper] whereof the title shall correspond with the title of the (newspaper) mentioned in the declaration [or the editor of every portion of that issue of the newspaper of which a copy is produced]".
15. Law is well settled that presumption under section 7 of the Act, 1867 is available to be drawn against the Editor of the publication, whose name appears in each of the issues of the publication. Admittedly, the petitioner no. 1's name is mentioned as the Editor of Dharitri and the petitioner no.2's name is mentioned as Printer and Publisher in each of the issues. Thus, the petitioner no. 1 as per distinction of the word Editor given in section 1 (1) of the Act would be presumed to be in control of the selection of the matter that is published in the newspaper. Hence, the mandatory presumption under section 7 of the Act, 1867 can be drawn against the petitioner no.1.
16. As has been held by the Supreme Court , the petitioner no. 1 if claims to be coming under the exception under section 499 IPC, the same has to be proved during the trial of the case and cannot be adjudicated upon in this application under section 482 Cr.P.C.
17. Since the matters, which have been published in the newspaper "The Dharitri", which has been specifically averred in the complaint petition, prima facie, appears to be defamatory, the liability of the petitioner no. 1 as the Editor of the newspaper for publication of the same can be presumed by application of section 7 of the Act, 1867. However, such presumption will not be available as against the petitioner no. 2, who though has been mentioned as the Printer and Publisher of the newspaper, but no declaration is made that he is responsible for selection of the news items to be published in the newspaper. No specific allegation has also been made against him stating that the petitioner no. 2 was responsible for publication of the said news items. Hence, this Court finds that no prima facie case under sections 500/501/502/34 IPC is made out against the petitioner no.2. However, no error or illegality can be found in the order dated 26.6.2008 taking cognizance of the above offences against the petitioner no. 1 for the reasons
stated above. Hence, the order of cognizance which is impugned in this petition stands quashed as against the petitioner no.2 Sri Dandapani Mishra, but the same is confirmed as against the petitioner no.1 - Shri Tathagata Satpathy and the criminal case shall continue against the petitioner no.1. The CRLMC is accordingly disposed of. Application disposed of.